Law Technology Today From the ABA Legal Technology Resource Center
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The courtroom was the original reality show—before our televisions and telephones were giving us access to entertainment 24 hours a day, the local courthouse was the best show in town. Free, drama-filled, exciting, and the bonus of seeing someone hauled away in handcuffs. As television invaded our culture, shows like Perry Mason, the Defenders, LA Law, the Good Wife, and the ever-present Law & Order, along with dozens of other lawyer-based shows, became the representation of our legal system in the minds of the public.
The true turning point in putting real court cases in the public eye was the OJ Simpson case in 1994. That case had lots of drama and made Court TV one of the most watched networks on cable TV. But as Court TV found out, and what all those in the legal profession already know, reality is far less exciting than the cases on TV and in movies. Rarely is there a true “Perry Mason moment,” and the cross-examination of a witness never ends in a screaming match between Tom Cruise and Jack Nicholson.
Before the proliferation of social media, lawyers and judges were already concerned with the “CSI effect”—the expectation of jurors that the evidence will definitively prove the guilt or innocence of a defendant. This also is exceedingly rare. Whether in criminal or civil court, the case is rarely cracked, and no one ever confesses on the witness chair. Cases that are clear cut never make it to the courtroom. They are settled or a plea agreement is reached well before a jury enters a courtroom. Nevertheless, the entertainment world has given the impression that such exciting moments are inevitable in a courtroom. Lawyers have had to counteract the CSI Effect by educating juries at the outset of a case that such moments don’t really exist.
Social media has changed the landscape of our society, and our courtrooms, forever. We no longer live in a world of waiting to watch the 5 o’clock news or to read the morning newspaper to find out the results of an election. Instead, our world is full of instant results, instant updates, and instant gratification. Any question you have about anything no longer requires a trip to the encyclopedia or library, but just a Google search from your couch. Opinions get validated (or ripped apart) as soon as they appear on Twitter, Facebook, or Instagram. Our need for instant information and immediate answers could also mean that our collective patience has diminished.
Finding a jury pool that has not heard about a high profile case, or any case with the smallest amount of local coverage can be extraordinarily difficult. Opinions run rampant on the Internet, and websites carry real stories, activist-driven stories, parodies, and opinions from all sides of an issue, making an objective take on a news story a rarity. Many times the average person won’t know immediately whether a post or article is genuine or not.
Social media and smartphones also offer everyone the ability to post their activities, locations, and opinions as they happen, and to get immediate feedback from their friends and followers. Any comment, quip, or “like” could influence a juror or potential juror in direct or subtle ways. Any outside influence has to be prevented at all costs. A jury’s job is to evaluate only the evidence presented by the attorneys, the testimony of the witnesses, and the evidence presented in court. Information from the media or even friends and family could derail that process. Anyone who watched the OJ Simpson trial saw commentary from various news outlets and interviews with witnesses or friends of the families involved. This impacted how everyone viewed the verdict that was ultimately reached. After the fact, several jurors said they may have changed their opinion had they had access to certain evidence that was all over the news but not presented in the courtroom. Some view that as showing the flaws in the legal system, but the rules of evidence and procedure attempt to keep as even a playing field as possible.
Courts now often include specific jury instructions regarding the use of social media while serving on a jury. People are so accustomed to posting on Facebook and Twitter about everything going on in their lives, to keep jurors from putting details and opinions about a case for which they are serving on a jury out in the world can prove difficult. It is inevitable that some jurors will see glimpses of social media commentary as they serve on a jury, and although most will try not to let such glimpses influence their objectivity as they serve as a juror, the influence may be inevitable, and impossible to undo.
The courts and the attorneys can try their mightiest to instruct and caution jurors not to use or view social media, but ultimately it will be up to the jurors themselves to keep their minds open and maintain their impartiality as they weigh the evidence and determine the verdict. There have been numerous stories about jurors who are excused for posting even what may be a very benign comment about a case. Even more difficult is keeping jurors from reading information about a high-profile case when it may be plastered all over their social media feeds. The constant influx of information has become a new form of entertainment, and during a trial, jurors will be completely deprived of this connection to the outside world. Lawyers must work even harder to keep cases exciting and interesting.
As Billy Flynn said in the musical Chicago, “This trial… the whole world… it’s all show business.” That sentiment has never been more true.
